Sutherland Packaging, Inc. v. Dir., Division of Taxation

CourtNew Jersey Tax Court
DecidedJune 29, 2022
Docket013288-2014
StatusUnpublished

This text of Sutherland Packaging, Inc. v. Dir., Division of Taxation (Sutherland Packaging, Inc. v. Dir., Division of Taxation) is published on Counsel Stack Legal Research, covering New Jersey Tax Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Sutherland Packaging, Inc. v. Dir., Division of Taxation, (N.J. Super. Ct. 2022).

Opinion

TAX COURT OF NEW JERSEY Essex County Dr. Martin Luther King Jr Justice Building 495 Martin Luther King Blvd CHRISTINE M. NUGENT Fourth Floor JUDGE Newark, New Jersey 07102-0690 (609) 815-2922 Ext. 54610

June 28, 2022

William Francis Kehoe, Esq. Kehoe and Company, LLC Suite 2 96 Route 206 Augusta, New Jersey 07822-2020

Joseph A. Palumbo Deputy Attorney General Richard J. Hughes Justice Complex 25 Market Street P.O. Box 106 Trenton, New Jersey 08625-0106

Re: Sutherland Packaging, Inc. v. Dir., Division of Taxation Docket No. 013288-2014

Dear Counsel:

This opinion arises from cross-motions for summary judgment. At issue is whether the

Litter Control Fee, N.J.S.A. 13:1E-213 to -233, applies to Sutherland Packaging’s operations.

Specifically, the analysis falls on Sutherland’s production of cardboard boxes and displays, and

whether one or both products constitute the type of litter-generating paper-product that the statute

seeks to tax.

R. 4:46-2(a) discusses the technical requirements of a summary judgment motion relevant

to the cross-motions filed by the parties. The motion “shall be served with a brief and a separate

statement of material facts . . .” which statement of material facts “shall set forth in separately

numbered paragraphs a concise statement of each material fact as to which the movant contends

there is no genuine issue together with a citation to the portion of the motion record establishing

the fact or demonstrating that it is uncontroverted.” Ibid. *

ml ADA Americans w ith Disabilities Act ENSURING AN OPEN DOOR TO

JUSTICE Per R. 4:46-2(b),

[a] party opposing [a motion for summary judgment] shall file a responding statement either admitting or disputing each of the facts in the movant’s statement . . . all material facts in the movant’s statement which are sufficiently supported will be deemed admitted for purposes of the motion only, unless specifically disputed by citation conforming to the requirements of paragraph (a) demonstrating the existence of a genuine issue as to the fact.

Plaintiff cross-moved for summary judgment without providing a formatted statement of

material facts or a citation to the record, as required under the rule. R. 4:46-2(a). Despite the

opportunity to correct the error plaintiff did not comply. First within the brief, and subsequently

as a separate pleading, plaintiff included a purported statement of facts comprised of narratives

which highlighted some of defendant’s statement of facts, along with unsubstantiated references

to industry recycling data, and citations to law. Plaintiff did not respond to defendant’s statement

of undisputed material facts required by R. 4:46-2(b). Instead, plaintiff noted, “Plaintiff agrees

that most of the facts are undisputed.” These are not merely technical rules. See Polzo v. County

of Essex, 196 N.J. 569, 586 (2008) (the party opposing a summary judgment motion has the

affirmative burden to respond). There is no claim of a material fact in dispute. Based on the filings

the court will accept the facts as set forth by defendant.

Facts and Procedural History

Sutherland Packaging (“plaintiff”) is a New Jersey corporation located at 254 Brighton

Avenue, Andover, New Jersey. Plaintiff operates a cardboard manufacturing business which

produces corrugated cardboard shipping containers and displays for sale to its clients. The clients

use the shipping containers for the transportation or storage of goods. Clients include retailers

and marketing firms who use the cardboard displays in retail locations to display and sell their

products to customers.

2 The boxes and displays are manufactured at plaintiff’s facility using corrugated roll stock

made of pine trees and/or recycled paper which is combined with adhesive and environmentally

friendly ink. The process then involves printing, slotting, scoring, die-cutting, folding, and gluing.

When ready to leave the manufacturing facility, the boxes are compressed, baled, and

stabilized with recycled four-way bands made of Polyethylene Terephthalate (“PET”), a plastic,

and covered in recycled dunnage, which is corrugated paper scrap. Displays are packed in the

same way and are also covered in recycled wrap. Boxes and displays are put on returnable pallets

for shipment. All the paper waste created in manufacturing and all the covering materials is

recycled. 1

In the years prior to 2006, plaintiff filed a litter tax return for its business. During an audit

of plaintiff’s business in 2012, defendant concluded that plaintiff had not filed a tax return under

the statute for tax years 2006 through 2012. Taxation issued a Notice of Assessment Related to

Final Audit Determination for tax years 2006 through 2012 finding plaintiff liable for Corporation

Business Tax, Sales and Use Tax and a Litter Fee. In a timely complaint filed in the tax court

plaintiff challenged the litter fee assessed in the amount of $14,619.30, plus penalties and interest.

Defendant filed the within motion for summary judgment followed by plaintiff’s cross-motion for

summary judgment.

Analysis

I. Summary Judgment Standard

1 In a supplemental brief submitted to the court plaintiff contends it recycles its products as well. The contention was not contained in a certification. Nonetheless defendant accepted the fact as undisputed for the purposes of the motion.

3 Pursuant to R. 4:46-2(c), the court should grant a motion for summary judgment provided

that “the pleadings, depositions, answers to interrogatories and admissions on file, together with

the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that

the moving party is entitled to a judgment or order as a matter of law.” Ibid.

The Court clarified the standard for summary review in Brill v. Guardian Life Ins. Co. of

America, thusly:

[T]he determination whether there exists a genuine issue with respect to a material fact challenged requires the motion judge to consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party in consideration of the applicable evidentiary standard, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party.

[142 N.J. 520, 523 (1995)].

The court finds that the issue under consideration is one of statutory interpretation

presented in a manner ripe for summary judgment.

II. The Litter Fee under Clean Communities Program Act

The New Jersey litter fee is assessed under the “Clean Communities Program Act.” L.

2002, c.128, sec.1; amended 2007, c.311, sec.13. It is imposed on “each person engaged in

business in the State as a manufacturer, wholesaler, or distributor of litter-generating products.”

N.J.S.A. 13:1E-216(a). The fee, historically known as a tax, constitutes “an excise tax on the

privilege of engaging in business in New Jersey as a manufacturer, wholesaler, distributor or

retailer of litter generating products measured by the gross receipts from sales of such products

within or into New Jersey.” United Jersey Bank v. Dir., Div. of Taxation, 12 N.J. Tax 516, 519-

20 (Tax 1992); Feesers, Inc. v. Dir., Div. of Taxation, 20 N.J. Tax 201, 204-05 (Tax 2002).

The litter statute defines “Litter” as follows:

4 d.

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